No. 90-305 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vROBERT E. HOWARD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable Dale Cox, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Douglas Alexander, Sidney, Montana 

For Respondent: 

Marc Racicot, Attorney General; Joe Thaggard, Asst. 

Atty. General; Helena, Montana 

Mike Weber, Richland County Attorney; Phillip N. 

Carter, Deputy County Attorney; Sidney, Montana 

Submitted on Briefs: January 17, 1991 

Decided: March 4, 1991 

Filed: 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

In the District Court for the Seventh ~udicial District, 

Richland County, defendant Robert Howard, was convicted of two 

counts of felony sexual assault pursuant to 9 45-5-502(3), MCA. 

Defendant appeals. We affirm. 

The sole issue for our consideration is: id the District 

Court err in finding the two child witnesses competent to testify 

under Rule 601, M.R.Evid.? 

Mrs. M1s twin five-year-old daughters, C.B. and K.B., lived 

with Mrs. M and her husband. ~ccasionally, the M's had defendant's 

wife, Teresa, babysit the twins. 

In May 1989, C.B. and K.B. told Mr. M that defendant had 

''licked their butts1' and showed them his "big thing1'. Mr. M 

informed David Schettine, a Police Detective, about what the girls 

had said. Mr. Schettine then interviewed each girl separately. 

Both girls said that defendant "licked their buttn in the presence 

of the other twin. They both indicated by pointing that what they 

really meant by were their vaginas. The girls testified 

that the assaults took place at Teresa's home while she was 

babysitting. Each girl testified that Teresa was not at home when 

the assaults took place. 

Did the District Court err in finding the two child witnesses 

competent to testify under Rule 601, M.R.Evid.? 

Defendant maintains the District Court erred in allowing the 

testimony of C.B. and K.B. because the girls were not competent to 
testify. He contends that the girls were "incapable" of telling 

the truth and are therefore incompetent under Rule 601(b), 

M.R.Evid. 

The State maintains that both girls were proven to be 

competent prior to testifying. The State points out that after the 

voir dire of C.B., and upon the State's motion, the court found 

C.B. competent to testify. Defendant failed to object to C.B. Is 

competence or to voir dire her at this point. C. B. then testified. 

Only after the State's redirect examination of C.B. did defendant 

move the court to reconsider C.B.'s competency to testify. The 

court denied that motion. 

Similarly, before K.B. was declared a competent witness, the 

court invited the defense to voir dire K.B. The defense responded 

with, I1I think I'd prefer to just cross-examine once." The court 

then found K.B. competent to testify. After the re-direct 

examination of K.B., the defense moved the court to reconsider its 

finding of K.B.'s competence. The motion was denied. 

The State further contends that both girls were 'lcapablell of 

testifying under Rule 601(b), M.R.Evid. It urges that in 

determining whether the District Court abused its discretion it 

must be determined that K.B. and C.B. possessed sufficient capacity 

of expression and appreciation of the duty to tell the truth to 

qualify them as competentwitnesses. The State contends both girls 

were able to vividly recall the assault and relate significant 

details of what happened. 
Rule 601 (b) provides: 

Disqualification of witnesses. A person is disqualified 

to be a witness if the court finds that (1) the witness 

is incapable of expressing himself concerning the matter 

so as to be understood by the judge and jury either 

directly or through interpretation by one who can 

understand him or (2) the witness is incapable of 

understanding the duty of a witness to tell the truth. 

During the settling of instructions, the District Court 

addressed the pending motions by the defense to reconsider the 

qualifications of the two girls as to their competency. The court 

stated: 

The Court has reviewed a number of Supreme Court 

cases, State vs. Rogers, State vs. DBS, State vs. Phelps, 

State vs. Elier, and others. 

The Court has also reviewed the testimony and notes 

that the criteria is set forth in Rule 601 of the Montana 

Rules of Evidence. And for disqualification of a 

witness, the person must be -- the witness must be 

incapable of expressing herself concerning the matter so 

as to be understood by the judge and jury, directly or 

through interpretation by one who can understand him. 

I found both girls were capable of expressing themselves. 

And the second, a witness is incapable of 

understanding the duty of the witness to tell the truth. 

And the State did lay a foundation as to both girls 

showing that they knew it to be wrong to lie. 

The cross-examination brought out certain 

inconsistencies of each witness. Based upon my reading 

of the Supreme Court cases and my understanding of the 

Rules of Evidence, those inconsistencies are for the jury 

to take into consideration in determiningthe credibility 

of each witness. 

Therefore, the motion for reconsideration is denied. 

A determination of competency is within the sound discretion 

of the District Court. State v. Newrnan (1990), 242 Mont. 315, 790 

P.2d 971. Defendant has failed to demonstrate the District Court 

has abused that discretion. 

We hold that the District Court correctly found the two child 
witnesses competent to testify under Rule 601, M.R.Evid. 

Affirmed. 

" Chief Justice